CORPORATE SYSTEMS PUBLISHING PTY LTD & ANOR -v- LINGARD & ORS [2004] WASC 265

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 265
Case No:	CIV:1788/2003	Heard:	11 NOVEMBER 2004
Coram:	PULLIN J	Delivered:	16/12/04
No of pages:	11	Judgment Part:	1 of 1
Result:	Plaintiffs' application dismissed
Category:	B
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Parties:	CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622) NICK CHRISTOU KEITH GRAEME LINGARD STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206) STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909) NEIL KEVIN JOYCE DEMANDEM HOLDINGS PTY LTD (ACN 009 258 664) GLENLEA ENTERPRISES PTY LTD (ACN 065 274 544)
Catchwords:	Practice and Procedure Application to reopen application for summary judgment Previous application refused Circumstances in which interlocutory order will be reopened No new point of principle
Legislation:	Nil
Case References:	Clairs Keeley (a firm) v Treacy [2004] WASCA 277 Todd v Novotny [2000] WASC 308 Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 21st Century Promotions Australia Pty Ltd v Telstra Corp Ltd [2000] SASC 353 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 DA Christie Pty Ltd v Baker [1996] 2 VR 582 Donaghy v Wentworth Area Health Service (No 2) [2003] NSWSC 814 Dresler v Mrish [1999] NSWSC 523 Esplanade Hotel Busselton Pty Ltd v Graywinter Properties Pty Ltd, unreported (Master Sanderson); Library No 970656; 28 November 1997 Jackson v Goldsmith [1950] 81 CLR 446 Jones v Toben [2002] FCA 1150 Mann v Capital Territory Health Commission (1982) 148 CLR 97 Nokia Corp v Truong [2004] FCA 1109 Servcorp (Australia) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281 Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CORPORATE SYSTEMS PUBLISHING PTY LTD & ANOR -v- LINGARD & ORS [2004] WASC 265 CORAM : PULLIN J HEARD : 11 NOVEMBER 2004 DELIVERED : 16 DECEMBER 2004 FILE NO/S : CIV 1788 of 2003 BETWEEN : CORPORATE SYSTEMS PUBLISHING PTY LTD (ACN 009 412 622)

First Plaintiff

NICK CHRISTOU

Second Plaintiff

AND

KEITH GRAEME LINGARD

First Defendant

STANTON PARTNERS AUSTRALASIA PTY LTD (ACN 085 103 206)

Second Defendant

STANTON ACCOUNTANTS & ADVISORS PTY LTD (ACN 085 059 909)

Third Defendant

NEIL KEVIN JOYCE

Fourth Defendant

DEMANDEM HOLDINGS PTY LTD (ACN 009 258 664)

Fifth Defendant

(Page 2)

GLENLEA ENTERPRISES PTY LTD (ACN 065 274 544)

Sixth Defendant

Catchwords:

Practice and Procedure - Application to reopen application for summary judgment - Previous application refused - Circumstances in which interlocutory order will be reopened - No new point of principle

Legislation:

Nil

Result:

Plaintiffs' application dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr P G Clifford & Mr A P Rumsley

Second Plaintiff : Mr P G Clifford & Mr A P Rumsley

First Defendant : Mr M L Bennett & Mr M A MacLennan

Second Defendant : Mr M L Bennett & Mr M A MacLennan

Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 265
Decision Date

CaseChat Overview and Summary

The case of Corporate Systems Publishing Pty Ltd v Lingard was heard by Pullin J in the Supreme Court of Western Australia. The plaintiffs, Corporate Systems Publishing Pty Ltd and Nick Christou, sought to reopen an application for summary judgment against the defendants, including Keith Graeme Lingard, Stanton Partners Australasia Pty Ltd, and Stanton Accountants & Advisors Pty Ltd. The dispute originated from a restructuring of an accounting partnership in 1998, which led to the transfer of partnership goodwill to Stanton Partners, with the former partners licensing the practice for a fee. The plaintiffs argued that nearly $1.9 million was paid out of the Stanton Partners Trust contrary to the terms of the trust deed. The defendants contended that the payments were authorised by the beneficiaries and trustees of the trust, as per an agreement made in January 2002.

The legal issues before the court included whether the interlocutory order dismissing the summary judgment application should be reopened and if there were new points of principle or significant changes in circumstances warranting reconsideration. Pullin J concluded that the plaintiffs' application should not be entertained as the claims could have been raised during the initial summary judgment application. The court held that the plaintiffs had not demonstrated any new evidence or changed circumstances that would justify reopening the previous interlocutory order. Furthermore, the court found that the argument regarding the calculation of profits under the January 2002 agreement was not a new point of principle and could have been addressed in the earlier proceedings. Consequently, the plaintiffs' application was dismissed, and no further orders were made.

Orders